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Wednesday, July 01, 1992

The Bill of Rights and Moral Philosophy

America’s political foundations were laid more than 200 years ago. The Declaration of Independence simply but clearly stated that each of us has basic rights to life, liberty, and the pursuit of happiness. The framers of the Constitution then made the point in more detail by adding the Bill of Rights, so as to single out some rights as deserving special mention without belittling others not listed.

The central thesis of these documents is the doctrine of individual rights. Spelled out in considerable detail by the English philosopher John Locke, this doctrine holds that each person is a sovereign being, not to be ruled by or rule over others, but rather to take charge of his property—his own person and estate. Our nation’s founders thus rejected the most pervasive doctrine on the globe at the time—that some people were justified by God, nature, force, or convenience to be the masters of their fellowmen.

The framers, unfortunately, did not fully accept the doctrine of individual rights when they permitted slavery, so the Constitution remained, for nearly a century, a contradictory legal document. It took a civil war to change this. Indeed, without the philosophical basis stated in the Declaration, it is doubtful that a solid political argument against slavery could have been found in our country’s heritage.

How is this doctrine of individual rights faring among today’s political philosophers? Not very well. Few of them champion individual rights. Even fewer scholars in other branches of the liberal arts, what with their relativism, determinism, and amoralism (the famous value-free stance of many social scientists) respect the idea. While lip service is still given to human rights—by Amnesty International and other “human rights watch” agencies—the precise meaning of such rights has become obscure. Whereas the meaning of the right to liberty had been that one ought to be free to go it on his own initiative, without uninvited intrusion from others—which also meant that other people could not be conscripted to be one’s means for even the most benign objectives—today one has a “human right” to nearly everything one values or likes. These are the numerous entitlement programs that have nearly bankrupted the nation.

Yet it isn’t only that the concept of human rights has been given a new meaning, by way of combining the Lockean doctrine with many alien dogmas. Many political philosophers scoff at the idea outright. Having accepted the notion that truth is historically relative, they view the belief that each person is a sovereign being, not to be subjugated to the will of king, party, or even popular majorities, as a relic of the distant past.

Paradoxically, at the same time that such historicist theories are used to make short shrift of our political heritage, other theorists are not hesitating to indict us for “our” past treatment of Native Americans, African-Americans, women, and other groups. Here, suddenly, we have discovered universal standards, so we can say that our forefathers were bigots, racists, sexists, and so forth. Why this is taken seriously and not dismissed as incoherent, since it applies current value judgments to other historical periods, is one of the curiosities of contemporary political discussions.

While America’s 200 years of experience with rights theory is certainly worthy of celebration, the substance of what we should be celebrating is not faring well in the hands of academe. Fortunately, however, those who inhabit those halls are not so influential about the direction the world will take as they sometimes believe.

The people, so long as their right to free thought is still respected by law, are still in charge. And they can make the difference between a future guided by the principles that gave birth to our nation or one directed by alien philosophies that will take us back to the dark ages of feudalism and despotic rule.

It is worth some effort to recall the basic ethical and political ideals captured in the Bill of Rights. This will indicate just how unjustified the historicist skepticism is vis-à-vis that wonderful document.

The First Amendment maintains that no law may be made concerning the crucial human activities of speech, press, assembly, or the petitioning of the government for a redress of grievances. How does this prohibition square with moral sense?

Morality involves, at the most basic level, that (1) each person is free to make choices as to what he or she will do and (2) there are identifiable standards by which to determine which of our choices are better or worse. Any decent society must aim, ultimately, for justice. And justice amounts to respecting the basic nature of human community life. Such a task will, therefore, involve respecting the basic tenets of morality, since the moral nature of human life is perhaps its most distinctive feature.

The First Amendment pays direct attention to the moral nature of our lives by placing protection around each person’s right to think and speak as he judges best.

The Second Amendment shows equally firm respect for the value of every person’s life and liberty in a social context by making it clear that no one is to be deprived of his capacity to defend against aggressors. The right to bear arms is the right of self-defense, which flows from the basic right to our lives and from the basic value that life possesses for each of us.

The Third Amendment begins to affirm the right to private property by prohibiting government’s use of private homes in time of peace.

It is clear from this that the right to private property was a vital aspect of the politics of the framers. And that right affirms in practical terms the basic rights to life and liberty already spelled out. In other words, the right to private property translates into as concrete an indicator as possible the practical requirements for respecting the rights to life and liberty. It makes clear that those rights require a sphere of personal jurisdiction secured by property law.

The Fourth Amendment, which protects us against unreasonable searches and seizures, extends the idea of private property rights to cases in which there can be understandable temptation to violate them. Even when an emergency or state of siege exists, there may be only reasonable search and seizure, meaning that the government may disregard the privacy of its citizens only with good reason.

This makes moral sense, once again, because when victimization has occurred, citizens of a free society are obliged to support efforts to rectify matters. Without reasonable search and seizure powers, such rectification is impossible—how else would the government’s detectives conduct a process of discovery and arrest a suspect? But standards of reasonableness—which, of course, cannot be laid out forever but must remain contextual and unspecified, although they are always required—need to guide the process. (Here is a clear case of a procedural right, deriving from the right to life and liberty.)

The Fifth Amendment also illustrates the moral awareness of our framers. Except for military legal procedures—where the task is necessarily guided by emergency conditions—to restrain someone it is necessary to lay out a detailed indictment citing reasonable grounds for suspicion. Once such a process has begun, it makes sense that in a free society bent on maintaining justice, cooperation with the legal machinery of government should be mandated. (This, incidentally, justifies the subpoena process as well. Citizens of a society bent on justice may not exempt themselves from participating when the wheels of justice require their presence.)

Self-incrimination, in turn, may not be coerced, since that would be to treat an accused person as if he had already been convicted. Moreover, no right may be disregarded without due process of law, because “due process” is the detailed expression of just treatment. It involves the presentation of evidence justifying reasonable suspicion, probable cause, clear and present danger, and so on. Barring these, no action may be taken that disregards the rights of citizens.

Finally, the Fifth Amendment assumes that private property may occasionally be needed for public purposes. This makes sense—courthouses, police stations, and military bases must be built. These are genuine public concerns, not to be confused with the bloated rendition of “public” employed in recent times, whereby anything a sizable number of people happen to desire becomes a public purpose. Only when these proper public uses are at issue may government engage in takings, and only if the market price is paid for what is taken.

The Sixth Amendment speaks of a “right to a speedy and public trial,” thus specifying further certain procedural implications for a legal system concerned with justice in a genuine free society, one in which citizens are recognized as sovereign. The same applies concerning the Seventh and Eighth Amendments.

The unfortunately neglected Ninth Amendment affirms that citizens have innumerable implicit rights, depending on their various circumstances, based on the rights affirmed both in the Declaration of Independence and in the amendments cited earlier. Since the Constitution is a brief and concise political/legal document, it cannot be expected to enter the details of the theory of rights guiding it.

The Ninth Amendment is the way the framers indicated that they have not forgotten the broader framework guiding their political/legal deliberations. It also imposes an obligation on legislators and courts to proceed to discover the further rights of the people. In short, the Ninth Amendment is in a way a code of professional ethics for our political representatives and appointed officials. It is, of course, widely violated.

The Tenth Amendment may be understood as a feature of a contextualist approach to the law. The federal government cannot have much expertise in many areas, so it should not meddle in such matters. It is, indeed, prohibited from doing so—it is beyond its range of authority, its jurisdiction. The law, after all, must be implemented locally, applying to the facts of life of the citizenry. Some of these facts will apply generally enough so they may be treated at the federal level. Others, in turn, are regional. Thus we have different governmental bodies—from the federal down to the municipal. None of their laws may violate the individual rights of the citizens. But apart from that prohibition, the different governmental bodies will have needs for different powers. That is the thrust of this amendment.

After the Bill of Rights, the amendment process quickly deteriorated into a mobocracy, and nearly every time some powerful sentiment raged, an amendment was passed to satisfy it. It is not speculative to say that nearly every good subsequent emendation of the Constitution could have been derived from its existing provisions, including the abolition of slavery, while the rest were expressions of impatience with the wheels of justice and the life of a free society.

There is a lot more to morality than what the laws of a just legal system contain, but these laws are certainly not without moral content. Furthermore, they even suggest several additional moral considerations, for example, the idea of individual responsibility for one’s life, the virtues of prudence and courage and honesty. The affirmation of personal autonomy does not make sense without the recognition that human beings are capable of and responsible for governing themselves.

Tibor R. Machan is an Emeritus Professor in the Department of Philosophy at Auburn University and formerly held the R. C. Hoiles Chair of Business Ethics and Free Enterprise at the Argyros School of Business & Economics at Chapman University.

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